The Supreme Court needs to decide who is too intellectually disabled to be executed

A 2008 photo shows the gurney in Huntsville, Texas where the state’s condemned are strapped down to receive a lethal dose of drugs. (Pat Sullivan / Associated Press)

The U.S. Supreme Court ruled 14 years ago that it is “cruel and unusual” — and therefore unconstitutional — to execute the intellectually disabled because “they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Ever since that decision in Atkins vs. Virginia, courts and capital punishment states have been wrestling with what defines someone as intellectually disabled (the contemporary term for people formerly described as mentally retarded).

Bobby Moore was 20 when he shot and killed a Houston supermarket clerk during a robbery in 1980. As a child, Moore did poorly in school — he failed first grade twice and at age 13 couldn't follow the logic that differentiates addition from subtraction. When he was 12, Moore suffered grievous head wounds when he was struck with a chain and a brick during violent protests against racial integration. His father, angry over his poor school performance, kicked him out of the house when he was 14, and Moore, after failing every class in ninth grade, dropped out of school and became involved with drugs and minor crimes. The robbery in which the killing occurred was an effort by Moore and two friends to get money to make a car payment.

The Moore case once again points up the root absurdity of the death penalty.

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The details of the crime, and Moore's involvement, are undisputed. At issue is whether Moore's intellectual disabilities are severe enough to make him ineligible for execution — and how Texas makes that determination. The Supreme Court ruled in Hall vs. Florida in 2014 that it is insufficient to rely solely on whether a defendant can achieve an IQ test score above 70, which is psychologists' traditional threshold for determining intellectual deficiency. Rather, the defendant's "adaptive functioning" — his or her ability to understand the world well enough to navigate it — must also be taken into consideration. But it left it up to the states to define the exceptions "informed by the medical community's diagnostic framework."

Moore's lawyers argued that under current clinical definitions, he should be spared. Texas' standard, however, is based not on contemporary standards, but on outdated clinical definitions established in 1992 and weighted by what are known as the "Briseño factors," a set of seven determinations crafted by the Texas Court of Criminal Appeals to reflect how an average person might determine someone's intellectual capacity. These factors — based on nonscientific stereotypes and the fictional character of Lennie Small in John Steinbeck's "Of Mice and Men" — include whether the person can focus and carry through on plans, is easily led, is able to tell a lie effectively and can respond rationally to social stimuli. The court developed the standards to reflect its view that not everyone who is diagnosed as intellectually disabled for "clinical" purposes necessarily deserves to be spared from execution. But defining intellectual disability should be based on scientific and medical standards, and it's preposterous that Texas determines life or death based in part on what an average person might think.

The Supreme Court justices on Tuesday were highly skeptical of Texas' argument, as they should be. Predicting what the court might rule in a given case is a fool's errand, but if the ruling follows the direction of the justice's questions, it could well spare Moore's life. Still, such a decision would be too late for at least six other men Texas has executed since 2011 who, had the state followed a more realistic standard, might have received mercy based on their intellectual disabilities, according to anti-death-penalty activists.

The Moore case once again points up the root absurdity of the death penalty, which forces lawyers to argue over whether someone is smart enough to die in Texas, where he might have already been spared had his crime occurred in a different state using contemporary clinical assessments. Capital punishment is a medieval practice disproportionately applied to the poor and to people of color under a system that is too easily gamed to be trusted, and where the decision to seek death varies by the whims of local district attorneys. Eventually the court needs to recognize that capital punishment is fundamentally unjust and do away with the practice altogether.